Recently the European Court of Human Rights has said that the UK must implement measures to protect employees from dismissal on the grounds of their political opinions or affiliations, including extreme opinions that 'offend, shock or disturb'. Reema Jethwafrom our Employment Team explains.

In the case of Redfearn v United Kingdom, Mr Redfearn was employed by Serco Ltd as a bus driver providing transport for disabled adults and children - the majority of which were of Asian origin. Throughout Mr Redfearn's employment with the company, there were no issues with his performance or his conduct, indeed he was nominated by his supervisor as a 'first-class employee'.

However, following an article being published in the local newspaper which identified Mr Redfearn as a candidate for the British National Party (BNP), the Trade Union and Serco's workforce began raising their concerns. At the time, membership of the BNP was restricted to white people and was primarily 'opposed to any form of integration between British and non-European peoples'. Following his election as a local councillor, Mr Redfearn was dismissed immediately on the grounds that his continued employment would:

  • Present a risk to the health and safety of its employees and passengers
  • Cause considerable anxiety to its passengers and their carers
  • Jeopardise Serco's reputation 

At the time of his dismissal in June 2004, Mr Redfearn had less than one year's continuous service; this meant that he was unable to bring a claim for unfair dismissal. Therefore, Mr Redfearn sought to bring a claim for race discrimination. This claim was rejected by the Court of Appeal which stated that discrimination law should not be used to protect employees from unfavourable treatment for acting in a way that is racially discriminatory. Mr Redfearn tried to argue that he was dismissed because he was white and so this was on racial grounds. This argument was also rejected as his dismissal was due to his membership of the BNP not because he was white. Mr Redfearn's complaint was of discrimination on political grounds, which fell outside of anti-discrimination law. Additionally he was unable to bring a claim under the Human Rights Act 1998 as Serco was not a public authority.

As Mr Redfearn was not allowed to appeal to the House of Lords regarding the decision, he then applied to the European Court of Human Rights for a declaration that his dismissal was incompatible with his rights under Articles 10 (freedom of expression) and 11 (freedom of association) of the European Convention on Human Rights.

The European Court said that Article 11 provided a universal right of freedom of assembly which applies to all associations including those which offend, shock or disturb. The European Court considered it incumbent on the United Kingdom to take reasonable and appropriate measures to protect employees, including those with less than one year's service, from dismissal on grounds of political opinion or affiliation, either through the creation of a further exception to the one-year qualifying period or through a free-standing claim for unlawful discrimination on grounds of political opinion or affiliation. As the United Kingdom's legislation was deficient in this respect, the Court concluded that the facts of the present case gave rise to a violation of Article 11.

What does this mean for employers?

The timing of this decision is important given that the Government has recently pushed unfair dismissal rights beyond the reach of many employees by increasing the service requirement from one to two years. It remains to be seen how the Government will react to this particular ruling by the European Court of Human Rights. However claims under the Equality Act 2010 can of course be brought from day one in respect of dismissals that are discriminatory – as opposed to unfair.

Whilst claims can be brought on the grounds of religion and belief (even political philosophies such as socialism, Marxism, communism or free-market capitalism) more objectionable beliefs – such as racist or homophobic political philosophies – might not be protected, as they would offend against the requirement that protected beliefs should be 'worthy of respect in a democratic society and not incompatible with human dignity'. This may therefore present a bar to Mr Redfearn claiming religious/belief discrimination under the Equality Act 2010.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.